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Land Use / Zoning


Attorney Alphen considerable experience in the areas of land use regulation, zoning and permitting. The permitting process includes working with the project engineers to identify all of the applicable land use regulations, and adjusting the layout of the project to meet applicable requirements. When full compliance is not practical, local knowledge of the expectations, customs and practices of the local permitting boards is very valuable. Many regional and national developers have retained Mr. Alphen to work with project engineers and represent the project before the local boards. The permitting process has become significantly more complicated than it was even 10 years ago because of the proliferation of new regulations pertaining to wetlands, endangered species habitat areas, storm water management and environmental protection, plus the increase in the need for special permits for almost any project. While the buyer is examining site conditions and the environmental issues associated with the property, Attorney Alphen can be retained to examine the record title to the property and the applicable zoning and regulatory provisions. It has been said that in order to write a reliable zoning compliance letter for property in Massachusetts, the author has to own a set of all-season tires; a reliable zoning compliance letter usually requires a few trips to the local town hall and a search through the boxes stored in the basement to review prior decisions pertaining to the property and the history of the zoning by law applicable to the property. Ultimately, the title examination and the zoning information will be used to provide documentation required by the lender, but the information is invaluable to the permitting process.

The Role of Local Counsel
Sometimes regional or national developers will rely on local counsel to manage the permitting process by coordinating the efforts of the site engineers, wetlands scientists, architects, lighting experts, traffic consultants and other experts. This allows the developer to have the person closest to the process make immediate decisions or recommendations regarding plan revisions and strategy. The approval process can take weeks or over a year, and local boards typically meet only twice a month and have limited time period within which revised plans and data may be submitted between meetings. Having local counsel provide coordination regarding the ways to most efficiently respond to concerns raised at board meeting improves the permitting process by demonstrating to the boards and their staff that the client is attentive and responsible. If a permit is denied, or a project is appealed, local counsel remains invaluable as a resource regarding the history of the permitting process and the regulatory requirements. Even if special litigation counsel is engaged, local counsel can work hand in hand with litigation counsel to resolve the dispute efficiently and favorably.

Post Approval Assistance
Once permitted, counsel customarily remains involved in fulfilling certain post-approval conditions ranging from recording the decisions to preparing required restriction documents, to providing check lists to the developer of the numerous requirements contained within the decisions. Counsel is also involved in performing the real estate closing and providing the necessary documents and opinions required of lenders. In the event that title issues arise, counsel can work out the resolution of same prior to the closing, usually with the assistance of seller’s counsel. In the event that issues arise pertaining to compliance with the applicable permits and approvals, having first hand experience with the plans and the conditions of approval, counsel can assist in expediting resolutions either by providing clarification or suggesting appropriate response actions. Subdivisions also require security for the construction of roadways, and release mechanisms prior to the issuance of building permits, and counsel can prepare the necessary documents and meet with the necessary officials to obtain required approvals.